I recently came across one of those silly websites in which a writer largely ignorant of the Constitution’s background purports to lecture us about it. One of the claims made was that the Founders inserted the Article V amendment process only to remedy defects in the Constitution, not to address abuses of federal power.
This would be news to the Founders who adopted the Bill of Rights and the 11th Amendment. The first eight amendments were focused largely on forestalling potential abuses of otherwise constitutional federal powers. In fact, the congressional preamble to the Bill of Rights stated it was adopted “in order to prevent misconstruction or abuse of its powers.” The 11th amendment, adopted in 1795, was not designed to change the Constitution but to correct an abuse: It reversed the Supreme Court’s decision in Chisholm v. Georgia, in which the Court had assumed jurisdiction not granted to it in Article III.
The website also overlooked important Founding-Era statements on the application and convention process of Article V. For example, during the Constitutional Convention, George Mason of Virginia urged his colleagues to provide a way of proposing amendments that did not depend on Congress. As recorded by James Madison, Mason spoke on September 15, two days before the conclave adjourned, as follows:
Col: Mason thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.
Mason’s plea was successful: the state delegations voted unanimously to include the application and convention process in the Constitution.
Here’s another example: During the debates over the ratification, Tench Coxe of Pennsylvania—delegate in the last session of the Confederation Congress and later Assistant Secretary of the Treasury—was one of the most influential Federalist writers. In his essay addressed to the New York ratifying convention” Coxe wrote:
If two thirds of those legislatures require it, Congress must call a general convention, even though they dislike the proposed amendments, and if three fourths of the state legislatures or conventions approve such proposed amendments, they become an actual and binding part of the constitution, without any possible interference of Congress. If then, contrary to the opinion of the eight adopting states, the federal government should prove dangerous, it seems the members of the confederacy will have a full and uncontroulable [sic]power to alter its nature, and render it completely safe and useful.
Pelatiah Webster, a Philadelphia businessman who has been described as America’s first economist, contributed to ratification of the Constitution by writing articles and pamphlets in its favor. In October 1787, a New York anti-federalist with the pen name “Brutus” (likely Judge Robert Yates) began publishing essays opposing ratification. Brutus’ essays were characterized by much purple prose, and contended forcefully that once the Constitution was adopted a long parade federal abuses would begin.
In response, Webster noted that Brutus did not so much object to the Constitution as actually written as to the possibility that federal officials might abuse their powers: “the avidity of power natural to rulers . . . and their strong propensity to abuse their power, and encroach on the liberties of the people.” However, Webster pointed out that if federal abuses were to come to pass, a remedy lay in the application and convention process of Article V:
Brutus all along sounds his objections, and fears on extreme cases of abuse or misapplication of supreme powers, which may possibly happen, under the administration of a wild, weak, or wicked Congress; but ‘tis easy to observe that all institutions are liable to extremes, but ought not to be judged by them; they do not often appear, and perhaps never may; but if they should happen in the cases supposed, (which God forbid) there is a remedy pointed out, in the Constitution itself. ‘Tis not supposeable that such abuses could arise to any ruinous height, before they would affect the States so much, that at least two-thirds of them would unite in pursuing a remedy in the mode prescribed by the Constitution, which will always be liable to amendment, whenever any mischiefs or abuses appear in the government, which the Constitution in its present state, can’t reach and correct.
In sum: Those who seek to amend the Constitution to rectify federal abuses are following the Founders recommendations to the letter. And those who purport to lecture us on the Constitution should educate themselves first.